TaxTMI 
TaxTMI 
2004 (4) TMI 525
X X X X Extracts X X X X
X X X X Extracts X X X X
....tal number of members on 6.10.2001 were 23. On that day, the no confidence motion was moved against the Chairperson, in which 15 members voted for the motion. The motion was conducted by the SDO, Sanchar as a nominee of the Collector, Jalore. According to the SDO, the no confidence motion stood carried out as the whole number of members on the board, excluding the nominated members, was 21 and 2/3rd of 21 was 14, against which 15 members voted for the motion. According to the appellant, the decision of SDO was erroneous as the whole number of members of the board was 23 and not 21 as determined by the SDO and 2/3rd of 23 being 15.33, the motion stood defeated. The decision of the SDO was challenged by the appellant herein in the High Court by filing petition no.4178 of 2001. By judgment and order dated 21.5.2002, the learned Single Judge of the Rajasthan High Court, Jodhpur Bench held that in counting the whole number of members, nominated members have also to be taken into account even though they had no right to vote. The learned Single Judge relied upon the judgment of this Court in the case Raees Ahmad v. State of U.P. reported in [(2000) 1 SCC 432]. Aggrieved by the decision, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l boards under section 9(a)(i) and (ii) included nominated members, who formed the part of the whole number of the members of the board and, therefore, the expression "whole number of members" in the Act cannot be construed as "whole number of elected members". He submitted that under Article 243R(2)(b), the legislature may by law provide for a manner of election of the Chairman. He submitted that the rules of 1974 provided for removal of chairman, which was different from election of the chairman. In this connection, he submitted that even though a chairperson may be elected from the electoral college of elected members, the removal could be due to 2/3rd of the members including nominated members. In the circumstances, he submitted that if one reads rule 3(8) and rule 3(9) of 1974 Rules along with section 3(36) of the Act, it is clear that the no-confidence motion has to be carried by requisite majority of 2/3rd of the whole number of members including nominated members. He, therefore, submitted that the High Court erred in holding that the words "whole number of members" must be construed as "whole number of elected members". Shri S.K Jain, the learned counsel appearing on beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons of the Rajasthan Municipalities Act, 1959 before and after the Amendment in 1994: Provisions Prior to Amendment Provisions After Amendment "9. Composition of boards.(1) Subject to the provisions contained in the succeeding sub-sections, every board shall consist of such number of seats as may be fixed by the State Government from time to time by notification in the Official Gazette. (2)- (3) xxx xxx xxx 4. All the seats fixed for a board, general as well as reserved, shall be filled up by election held in the manner provided for by and in the order made under Section 29. 5. To every board there shall be appointed by co-option in the manner provided for by order published in the official Gazette (i) Two persons belonging to the female sex if no such person has been returned to the board by election referred in sub-sec.(4), or (ii) One person belonging to the female sex if only one such person has been returned to the board by such election, and such co-opted person or persons being treated for all purposes of this Act as elected member or members of the board, and the number of seats fixed for that board under sub-sec.(1) being deemed to be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nor vote thereon. (9) If the motion is not carried by a majority specified in sub-section (9) of section 65 or if any meeting cannot be held for want of a quorum, no notice of any subsequent motion of non-confidence in the same chairman (or vice-chairman) shall be received until the expiry of a period of six months from the date of the meeting." "9. Composition of boards(1) Subject to the provisions contained in the succeeding sub-sections, but save as provided in the following provisions of this sub-section, all seats in a municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the number of such seats, not being less than thirteen, being fixed by the State Government from time to time by notification in the Official Gazette: (a) the following shall be represented on the board, council or corporation, as the case may be, viz: (i) a member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a municipality; and (ii) three persons or ten percent of the number of elected members of the municipality, whichever is less, having special knowledge or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an.(1) Motion expressing non-confidence in the Chairman or the vice-chairman shall be made and considered in the manner prescribed. (2) No notice of motion under this section shall be made within one year of the assumption of office by a Chairman or a Vice-Chairman. (3) If a motion under sub-section (1) is not carried, no notice of a subsequent motion expressing non-confidence in the same Chairman or Vice-Chairman shall be made until after the expiration of two years from the date of the meeting in which the motion was considered." Article 243R(1)&(2) of the Constitution was inserted by Constitution (Seventy Fourth) Amendment Act, 1994 under Chapter XIV-B. It lays down guidelines with regard to the Constitution, composition, election and rights of the members of a municipality. We quote hereinbelow the relevant provisions: "243R. Composition of Municipalities. (1) Save as provided in Clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the time to be fixed and notified to the members. (4) A meeting convened for the purpose of consideration of the motion of no-confidence under these rules shall not for any reason except stated at sub-clause (3) be adjourned. (5) As soon as the quorum is present, the Collector or his nominee shall read the motion for the consideration of which the meeting has been convened and declare it to be open for discussion. No meeting for the consideration of motion of non- confidence shall be held unless the quorum is present. One-third of the whole number of members shall form the quorum. (6) Such discussion shall not be adjourned and shall automatically terminate on the expiry for four hours from the time fixed for the commencement of the meeting unless it is concluded earlier. (7) If the conclusion of the debate or upon the expiry of the said period of four hours, as the case may be, the motion shall be put to the vote of the Board and the Collector or his nominee shall neither speak on the merits thereof nor vote thereon. (8) If the motion is not carried by 2/3rd majority of the whole number of members, or if any meeting cannot be held for want of quorum, the motion o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to vote, which included the co-opted members. In Law and Practice of Meetings by Shackleton [8th Edition Page-66] while explaining the word "Majority" the learned author states that in legislative assemblies it is usual to decide the questions by a majority of those who have voting rights. The learned author, further states, that in cases where a motion is to be determined by a majority consisting of 2/3rd of the votes, the word "Majority" would mean majority of persons entitled to vote on the proposal and once the motion is voted upon by the requisite majority, it becomes resolution of the meeting. Therefore, the word "majority" would mean majority of persons entitled to vote. In the present case, the word "majority" finds place in sections 65(9) and 72(9) of the Act prior to amendment. Therefore, even prior to 1994 amendment of the Act, the legislature intended that the chairman/vice- chairman of the municipal board shall be removed only by a requisite majority of members having right to vote on the motion. We are, therefore of the view that even prior to 1994, the words "whole number of members" under rule 3 of the 1974 Rules meant total number of members who have voting rights....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... therefore, makes a distinction between elected members and nominated members who play essentially an advisory role. Pursuant to the 74th Constitutional amendment of 1994, sections 9, 65 and 72 of the Act were amended. Prior to the amendment the co-opted members were at par with the elected members, however, after 1994 only elected members and members of the legislative assembly have a right to vote under section 9(1) of the Act. Under sub-section (2) of section 65, as amended, the Chairman has to be elected by "elected members of the board". This change is very important. Prior to 1994, the Chairman was to be elected by the "members of the board", which is the phrase used in the unamended section 65(2), as the co-opted members had a right to vote. However, in 1994, section 65(2) of the Act was amended and the expression "members of the board" in the old section is substituted by the expression "elected members of the board". In fact, the expression "whole number of members" earlier appearing in sections 65 and 72 of the Act have been deleted because in section 65(2) it is expressly provided that the Chairman shall be elected only by elected members of the board from amongst themse....